YORKSHIRE RIDER LTD v MR F C NECKLES [2000] UKEAT 893_99_1801
[1]APPEARANCES For the Appellant MR C GRAHAM (SOLICITOR) FORD & WARREN WESTGATE POINT WESTGATE LEEDS LS1 2AX For the Respondent MR T SISLEY (OF COUNSEL) BURT BRILL & CARDENS RIDGEWORTH HOUSE LIVERPOOL GARDENS WORTHING BN11 1SF MR JUSTICE LINDSAY (PRESIDENT): We have before us, formally listed as an Interlocutory Appeal, the matter of Yorkshire Rider Ltd against Neckles. In fact the Applicant below was Mr Neckles and the Respondent, Yorkshire Rider.[2]Mr Neckles has embarked on four IT1's. There was one of the 3 rd March 1998 and then those of 19 th March 1998, 14 th April 1998 and 10 th September 1998. Of those four, only two went forward in any substantive way, because two of them, those of 3 rd March 1998 and 14 th April, were ruled upon as being out of time. There was a hearing of some 6 days between the 18 th and 26 th May 1999, and that that led to a decision of 14 th June 1999, the matter having come before the Employment Tribunal, at Leeds under the Chairmanship of Mr P A Morris, the decision sent to the parties on 14 th June was (amongst other aspects of the decision) that Mr Neckles had been unfairly dismissed and that he had also been wrongfully dismissed. It was said in the course of the decision that there had been misconduct, that on Mr Neckles' part that which the misconduct was said to be was not truly in dispute, but, for all that, that Mr Neckles was unfairly dismissed and wrongfully dismissed.[3]On the 20 th July 1999, Yorkshire Rider, the employer, appealed against that by lodging a Notice of Appeal. That was an appeal on the issue of liability, but "Remedy" went forward and on the 3 rd August 1999 there was Remedies Hearing (it is actually listed as being in three cases ending, using the latter part of the reference numbers, 4198, 4098 and 6098). My understanding is that 6098 has in fact been barred as being out of time, but at any rate, the other two, 4098 and 4198, were the matters that had been in issue in the liability hearing. So the Remedies Hearing took place on Tuesday 3 rd August, again, before the same Tribunal, and on 19 th August, the decision was sent to the parties and it was that Mr Neckles was to be reinstated and also that he was to be paid the not inconsiderable sum of £13,177.00, and that the order had to be complied with by the 6 th September 1999. He was not reinstated, either by the 6 th September 1999 or at all.[4]On 22 nd September 1999, that decision as to reinstatement and remedy was appealed by Yorkshire Rider and that is the second of the matters. The third, is that on the 17 th November, there was a hearing again, before the same Tribunal; the Tribunal had been convened, as the parties thought, to discuss remedy and to come to a finding on remedy in the light of the then- prevailing situation, namely that reinstatement had been ordered but had not been complied with. Section 117 of the Act provides for cases where an order for reinstatement has not been fully complied with and, moreover, where reinstatement has been ordered but has not been complied with at all. In each case there is a provision for monetary compensation and, no doubt, the parties, as they convened on the 17 th November at Leeds, thought that they were going to discuss what, if any money, should be paid, given that the reinstatement order had not been complied with and, of course, given also that there was an appeal against the reinstatement decision.[5]What happened on the 17 th November, is that of its own motion the Tribunal raised the issue of whether it was appropriate to continue with the Remedies Hearing given that there were by then appeals both against the liabilities decision - that is to say the Notice of Appeal of 20 th July - and perhaps it was already foreseen or known already that there would be a Notice of Appeal as against reinstatement. Of its own motion the Tribunal decided that the appropriate course was to postpone hearing of Remedy until the conclusion of the appeals. It also made this order:- "All new proceedings to be brought under the provisions of the Race Discrimination Act 1976 are to be stayed until the conclusion of the appeals and they will be heard together with any related preliminary matters by a differently constituted Tribunal".[6]The position, as Mr Neckles advisers understood it at the time, was that reinstatement might or might not be granted to Mr Neckles by Yorkshire Rider but it has since become quite apparent, and Mr Sisley for Mr Neckles accepts this, that Yorkshire Rider, albeit at the potential cost of having to pay compensation, has taken the position that it will not, in any circumstances, accept Mr Neckles back by way of reinstatement. Once that has become clear, as it has been, probably since the 17 th November, the practical issue is that both parties see it as appropriate now to go forward and have whatever, if any, sum which is appropriate quantified by way of a Remedies Hearing.[7]It is not that we see error of law in the decision of the Tribunal that followed the hearing of the 17 th November (it was actually sent to the parties on 7 th December of last year) but rather that the whole approach then adopted has been overtaken by events in that it has become accepted by both parties that reinstatement will not occur and hence that a money award will need to be quantified. Moreover, there is the possibility that if and when the sum is eventually quantified, it could be that, the case involving practical businessmen, the appeal against the liability decision might fall away in the sense that the game will hardly be worth the candle once this or that has been taken into account. I am not suggesting that will necessarily be the case, but Mr Graham for Yorkshire Rider recognises that it might be the case, and, that being so, it seems to us that without our having to identify error of law in the decision as to stay, it has been overtaken by events and, given, now, that both sides wish the remedy hearing to go forward, we see it as appropriate to allow that to happen, and accordingly, set aside the first head of decision, namely "the hearing of Remedy be postponed until the conclusion of the appeal" That is set aside so that the parties may now proceed with all due speed that they can muster.[8]The second part of the order under appeal, the part which concerned a stay of new proceedings to be brought under the provision of the Race Discrimination Act, does seem to us to involve error of law. There is no jurisdiction to stay proceedings which have not yet been issued. In extreme cases, courts can grant an injunction to restrain the issue of proceedings, but one cannot stay proceedings that do not exist and we can see such a provision could lead to difficulty where, as is the case with Race Discrimination claims, there is a time bar that has to be taken into account. We leave that difficulty to the future but we set aside the second head as being in error of law. Accordingly, we do not deal with the liability appeal, we do not deal with the decision of the 19 th August as to reinstatement and as to the payment of as it was £13,177.00 odd. We deal only with the interlocutory appeal properly-so-called, that is to say the decision sent to the parties on 17 th December. We set aside paragraph 1 for the reason we have given as being overtaken by events and we set aside paragraph 2 as being in error of law.[9]Subject to any further application from the parties that is all we propose to do at this hearing.